E058417!

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT, DIVISION TWO
Court of Appeal E058417 L.A. Superior Court YC064994

Lead for additional Superior Court consolidated cases

Ettlin v. Slawson, Ettlin v. Kriegler, Ettlin v. Taylor, Ettlin v. Kuhl, Cooper v. Weinbach, Cooper v. Levanas, Cooper v. Todd, Cooper v. Ashmann, YC065018 YC065019 YC065021 YC065164 SC113064 SC113135 SC113137 SC113136

Daniel COOPER, an individual; Plaintiff/Appellant v.

IN PRO PER

Elia WEINBACH, an individual; Defendant/Respondent.

) ) ) ) ) ) ) ) ) ) ) )

Appeal From a Judgment of The Superior Court of California, County of Los Angeles The Honorable Robert OBrien APPELLANTS REPLY TO RESPONDENTS BRIEF

Daniel Cooper, In Pro Per 1836 10th Street #B Santa Monica, CA 90404 310-562-7668

Kevin M. McCormick Benton, Orr, Duval and Buckingham 39 North California Street, Post Office Box 1178 Ventura, California 93002
1

E058417!
!

TABLE OF CONTENTS I. SUMMARY ...................................................................................................... 4 II. JUDICIAL BIASES ARE NOT ARGUED JUST DISMISSED .................... 5 III. NO APPRECIATION OF STURGEON I ........................................................ 5 IV. RESPONDENTS TRIVIALIZE THE CAPERTON DECISION.................... 7 V. RESPONDENTS IGNORE CHALLENGES IN STURGEON II .................... 8 VI. RESPONDENTS IGNORE THE CJP ANALYSIS ........................................ 8 VII. FALSE STATEMENT BY RESPONDENTS .............................................. 9 VIII. SMELLS LIKE A BRIBE ......................................................................... 10 IX. PLAINTIFFS ARE PATRIOTIC NOT VEXATIOUS ................................... 12 X. CONCLUSION ................................................................................................ 12
IN PRO PER

E058417!
TABLE OF AUTHORITIES
Cases Caperton v. A.T. Massey Coal Company, Inc., 566 U.S. ___ (2009) ...................................................................7, 12 Sturgeon v. County of Los Angeles (2008) ......................................... passim 167 Cal.App. 6, 630, 84 Cal.Rptr.3d 242 rev. denied 12/23/08 Sturgeon v. County of Los Angeles (2010) 191 Cal.App. 4th 344 .............................................................. passim Statutes 28 U.S.C. 2403 (b) (Determination of Constitutionality) ...................8 Constitutional Provisions U.S. Constitution, First Amendment ................................................12
IN PRO PER

Codes California Code of Civil Procedure ...................................................4 California Government Code .......................................................8, 10 SBX2 11 ................................................................................. passim (2009 Cal. Legis. Serv., 2nd Ex. Sess., Chap. 9 (S.B. 11)

E058417!
I. SUMMARY Judicial Officers may indeed merit pay increases. The current supplemental judicial payments are not the way to do it. The current payment system is unconstitutional, violates the California Code of Civil Procedure, and ignores the biases that arise from the county payments. The payments directly by the Superior Courts may even be illegal. Respondents, through the Court Counsel, are fixated on absolute judicial immunity. In spite of the copious legal references supporting immunity, they never address why Section 5 of SBX2 11 legislation was needed or why it was needed so hastily. How was the authorization of payments stated any differently in SBX2 11 than in the Lockyer-Isenberg statute? For Respondents, Lockyer-Isenberg was only a little bit unconstitutional per se, just like a little bit pregnant. The Standard of Review for this case is NOT an abuse of discretion. Plaintiffs
IN PRO PER

loss of multiple constitutional guarantees requires a STRICT SCRUTINY standard of review by judges who, at a minimum, have never taken the supplemental judicial benefits. Elia Weinbach took $153,549 of unconstitutional monies from Los Angeles County and participated in tax fraud by not paying federal or state taxes on that money. Sturgeon v. County of Los Angeles, 167 Cal.App.4th 630 (2008) held the payments unconstitutional, stripping him of judicial immunity. The Commission on Judicial Performance has determined SBX2 11 to be unconstitutional, the payments illegal thus denying Weinbach the Legislatures retroactive immunity, itself unconstitutional. The consolidated cases include three Justices of the Appellate Court because they took county payments while serving in the Superior Court. Californias legislature, Supreme Court and Attorney General must address this issue immediately to preclude a Federal Court from overseeing the dismantling of the largest judicial corruption case in the United States.
4

E058417!
II. JUDICIAL BIASES ARE NOT ARGUED JUST DISMISSED Respondents approach to discussing Plaintiffs contention of bias, bribes and fraud is to simply dismiss them as having no basis in fact or law, page 8, line 4. To the contrary, Judge OBrien overruled this portion of Respondents Demurrer and stated, the allegations upon which plaintiff relies are clearly stated, and, although unsound, are not uncertain, vague or ambiguous [AA-337]. The former spokesman for the judges of the Los Angeles Superior Court stated that the majority of the Judges see the judicial payments as an entitlement1. They have no appreciation or sensitivity to the fact they are essentially being paid twice for the same work. It was clear that the judges financial self interest is so tied up in those benefit payments, that no judge can rule on the propriety of those benefits. Consequently, there is the appearance of a code of silence by the judges on this issue. Accordingly, the judgment entered in favor of Judge Weinbach should be
IN PRO PER

DENIED. III. RESPONDENTS SHOW NO APPRECIATION FOR STURGEON I Sturgeon v. County of Los Angeles, 167 Cal.App.4th 630 (2008) Rev. denied 12/23/08, (Sturgeon I) held that the L.A. County payments to L.A. Superior Court judges violated Article VI, Section 19 of the California Constitution because the 1997 Lockyer-Isenberg Trial Court Funding Act, while it DID authorize judicial benefits, it did NOT set any standards for exercising the delegated authority and THUS the

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
1

!One judge apparently remarked that if the payments were terminated, there go my

Hollywood Bowl tickets. Media coverage by Full Disclosure The News Behind The News 2012, AAW/Full Disclosure Network ; Court Insider Exposes Judicial Treachery #630-632; Release Date: November 16, 2012 http://www.fulldisclosure.net/2012/11/court-insider-exposes-judicial-treachery/!!
!

E058417!
authorization under Lockyer-Isenberg of judicial benefits payments by counties to Superior Court judges was an unconstitutional delegation of power. There is no such thing as a little bit unconstitutional. And yet Respondents boldly proclaim on page 5, next to last line, that the payments are constitutional under Sturgeon I. On page 9, Respondents continue to claim the payments are not unconstitutional per se. Then they continue on the last line stating the payments are only unconstitutional because... Lockyer-Isenberg was only a little bit unconstitutional, (to borrow a popular metaphor) just like a little bit pregnant. Very importantly, while SBX2 11 attempted to give immunity for receiving the unconstitutional payments, Senate bill SBX2 11, Section 5, made no mention of retroactive immunity for judges or temporary judges who had received the county payments and did not disclose such and presided over cases in which the county had an interest. A spokesman for the Los Angeles Superior Court recently characterized the
IN PRO PER

long-held and prevailing attitudes among Los Angeles County Judges as follows: ..like so many people in Court who havent yet gotten confortable with the fact that the Court is no longer a County agency and that is why you see this particular court locked in such a futile battle with the AOC [Administrative Office of the Courts]. Judges of the Los Angeles Superior Court still are not ready to accept that. the County Courts became entities of the State and the State runs the show The Los Angeles Court is not ready to agree that power has shifted and the judges here no longer have it. [Sturgeon] held that Boards of Supervisors didnt have the statutory powers to make those payments because the Legislature had never specifically enacted a law allowing that, so the overall purpose of that bill [SBX2 11] was to clean that up The fact that those payments had been, strictly speaking, illegal for years was never addressed

E058417!
..there were courts, a couple of them, that were illegally diverting Court operating money to pay extra benefits, so the farther the AOC got into it, the clearer it became that there was the makings of a widespread scandal about self-dealing, and self interest by judges 2 Judge Weinbach currently displays no appreciation for the impact of the Sturgeon decisions. He also continues a great bias against Appellant for daring to insist on equal 50% treatment in matters of child custody and division of financial assets. IV. RESPONDENTS TRIVIALIZE THE CAPERTON DECISION Respondents assert that the Caperton case only involved an extreme contribution of $3 million to overturn a $50 million verdict. While the one time contribution of $3 million was large by many peoples standard, it represented just 6% of the verdict hoping to be overturned. Respondent totally fails to address the fact that for Los Angeles County, the $30 million in judicial payments to over 400 judges netted
IN PRO PER

$170 million in Title IV-D funds alone. That is a 467% payoff! Perhaps Court Counsel, Brett Bianco, fails to see this County payoff as extreme, because his own supplemental judicial benefits money [AA402] amounts to only a paltry 22% salary increase annually. Looked at differently, from the Litigation Managers point of view, the $30 million is a VERY extreme contribution when compared to the $90 million of publiclyadmitted actual settlements and legal fees (AA144-145). The legal fees of $44 million were the lowest in 5 years. For 2007-2008, the manager touted that the countys prevailing in 66% of trials and 90% of appellate cases.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
2

coverage by Full Disclosure The News Behind The News 2012, AAW/Full Disclosure Network ; Court Insider Exposes Judicial Treachery #630-632; Release Date: November 16, 2012 http://www.fulldisclosure.net/2012/11/court-insider-exposes-judicial-treachery/
!

!Media

E058417!
V. RESPONDENTS IGNORE THE COURTS OWN CALL FOR

TAXPAYER CHALLENGES IN STURGEON II Plaintiffs filed these 10 suits because Judges who personally accepted payments from anyone other than the State of California lost all the immunity protections cited by Respondents. For this reason, Plaintiff ignores all the references to judicial immunity or government code protections for state employees. Sturgeon I voided all those immunity protections. Respondents are in denial as to both the outcome and the impact of Sturgeon I. Sturgeon II states that the situation post SBX2 11 preserved the status quo ante Sturgeon I [AA-140] and give[s] rise to further challenges by taxpayers. Thus, SBX2 11 solved nothing. Plaintiffs are not vexatious but rather following the actions expressly stated in Sturgeon II by the Fourth Appellate Court [AA-140]. Accordingly, the judgment entered in favor of Judge Weinbach should be
IN PRO PER

DENIED. VI. RESPONDENTS IGNORE THE CJP ANALYSIS AND CONCLUSIONS The Commission on Judicial Performance has determined that SBX2 11 is unconstitutional for several reasons. Respondents totally ignore that analysis as well as all prior Attorney General analyses and opinions. [AA-165]. Plaintiff is entitled to, and will soon be requesting, a ruling from the California Attorney General certifying the constitutionality of SBX2 11. The request will be pursuant to U.S. Supreme Court Rules 14.1 (e)(v) and Rule 29(4)(c) and pursuant to 28 U.S.C. 2403 (b). This case will be before the U.S. Supreme Court in a few short months. The Standard of Review for this case is NOT for an abuse of discretion. The loss of multiple constitutional guarantees requires a STRICT SCRUTINY standard of review. Furthermore, the scrutiny must come from judges who, at a minimum, have

E058417!
never taken the supplemental judicial benefits, never advocated for Californias judicial officers, and with minimal professional ties to judicial officers.

VII.
!

FALSE STATEMENT BY RESPONDENTS Number ONE: on page 6, item B. first line and again on page 12, B. line 1,

Respondents claim It is indisputable that Ettlin and Cooper have sued the respondents in their respective capacities as the judicial officer .. That is false. Every one of the ten complaints is captioned with the respondent as An Individual. Appellants sought to strike the demurrer in every one of the cases arguing the cases were not filed against judicial officers but were properly pleaded against individuals. Appellants attempted to properly serve the individuals at their places of work. Court Counsel used the L.A. County Sheriff to intimidate Plaintiff Ettlin into not serving the individuals. The same Superior Court supported Court Counsel and refused to issue a restraining order [AAIN PRO PER

252] allowing Plaintiff to properly serve the individuals. Plaintiffs made every effort to treat the individuals as the disqualified judges they are. It is the Respondents who arbitrarily decided that Pro Per litigants had improperly sued, and then Respondents based their entire demurrer on the protections of government employees and judicial immunity. In fact, it is Court Counsel which is engaged in misuse of public funds. Number TWO: On page 7, item V, A, Line 1, Respondents incorrectly state that Plaintiffs claim the mere receipt of local judicial benefits is unconstitutional. In fact, it is the Fourth Appellate Court, in Sturgeon I, that has stated the mere receipt of payments is unconstitutional. While Plaintiffs agree with the Fourth Appellate Court and the CJP, the Plaintiffs suits are additionally based upon, and have repeatedly stated that Respondents were sued because they not only received the unconstitutional county payments but they also did not disclose such and most importantly presided over cases in which the county had an interest.
9

E058417!
Respondents seem incapable of seeing the linkage between the county revenues (interests) generated in Traffic Court and Family Court. Respondents have never addressed the revenue issues of Traffic Court and Family Court. In fact, footnote 9 on page 7 demonstrates that Court Counsel as well as many judicial officers think that the County of Los Angeles is a sovereign entity. It is Respondents own understanding of our government that is absurd and unworkable. While Respondents are incapable of seeing the revenue biases and county interests in Plaintiffs suits, Court Counsel is itself actively engaged in seeking to disqualify a different Los Angeles County Judge. Plaintiff understands that she is biased against the County Foster Care program and thus causes a loss of Title IV-F Foster Care revenues. Judge Amy Pellman receives the county payments but is not perceived to be keeping the bargain. Justice Posner of the 7th Circuit stated in his remarks relating to Sir Francis Bacon, that the judge who does not fulfill the bargain after he has taken the money is
IN PRO PER

equally as corrupt as the judge who takes the money and fulfills the bargain.

VIII. SMELLS LIKE A BRIBE Plaintiff also ignores all citations to the Government Codes protecting government entities and employees. Plaintiffs are not suing any governmental entity or any person in their role as a governmental employee. The receipt of County payments is not within the scope of employment and therefore may give the appearance of a bribe. Plaintiffs are suing for denial of their constitutional rights. Just as the BANE civil rights act separates organizations (CCC 51.7), from individuals (CCC 52.1), so Plaintiff sues Elia Weinbach as an individual, not as part of his employment organization. The constitutional test for the county payments is whether Ettlin and Cooper would be prosecuted for bribery if they gave money to the persons representing
10

E058417!
themselves as judges in their cases. Neither Plaintiffs nor the County of Los Angeles are sovereign entities and therefore payments by either must be governed by equal protection. Respondents also ignore the similarity of the county payments to the case in western Pennsylvania where Judge Ciavarella was charged with racketeering, bribery and extortion for sentencing thousands of young people and funneling them into two private detention centers3. Prosecutors say those centers were run by his friends who slipped him payments in a cash for kids scheme. A friend and developer, Mr. Powell, pleaded guilty to being an accessory to a conspiracy; and a builder, Robert Mericle, who was Mr. Ciavarellas close friend, pleaded guilty to failing to report a felony, (MISPRISION of FELONY). Plaintiffs seek to end the biases against fathers. Children deserve equal (50%) time with both parents. Denying custody to fathers in exchange for federal welfare
IN PRO PER

dollars is another cash for kids racketeering, bribery and extortion scheme. Court Counsel is not content impugning the integrity of courageous Pro Per litigants. It is also mounting a campaign4 against one of Los Angeles County Superior Courts own Judges, Amy Pellman, for taking the county money and not fulfilling her end of the bargain. Apparently Judge Pellman believes that children belong with their parents. But every child not sent to foster care costs Los Angeles County Title IV-F reimbursements. Foster Care is NOT one of the causes of action in Plaintiffs 10 cases.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
3

See New York Times article at, http://www.nytimes.com/2011/02/09/us/09judge.html?ref=markaciavarella 4 See Los Angeles Times article at, http://www.latimes.com/news/opinion/commentary/la-oe-newton-column-dependencycourt-judge-20121105,0,458283.column
!
!

11

E058417!
IX. PLAINTIFFS ARE PATRIOTIC NOT VEXATIOUS Plaintiffs have filed 10 cases to adequately indicate the scope of damages foreseen by the legislative commission (AA-276). The 10 cases are filed in 2 counties, by 3 individuals, against individuals in the Superior Court and the Second Appellate Court, implicate both Los Angeles County and the Superior Court of Los Angeles, and cover 8 different causes of action as sources of bias against Plaintiffs. Plaintiffs prepared an additional 6 cases against different judges but have not filed these cases until the constitutional questions have been resolved. Respondents have demonstrated a clear pattern of unconstitutional behavior and a systematic denial of civil rights. Plaintiffs read the Sturgeon II decision as an invitation by the Appellate Court for citizens to bring this kind of suit. Denial of basic civil rights and the First Amendment petitions to redress those injuries cannot be deemed meritless or frivolous.
IN PRO PER

Consequently, Appellant also requests that Respondent not be awarded any fees or costs. X. CONCLUSION Appellant requests this Court to overturn and deny the judgment by the Los Angeles Court favoring Elia Weinbach in order to protect its county payments. If judges truly had absolute judicial immunity, there would be no need for the Commission on Judicial Performance or for the Caperton decision. For all of the above stated reasons, Petitioner respectfully urges the Court to grant appropriate relief as may be just and proper. Dated: June 3, 2013 Respectfully submitted, __________________________________ Daniel Cooper

12

E058417!
VERIFICATION
FORM No. 2 Verification of Pleading (Code Civ. Proc., 446) Declaration under Penalty of Perjury Form (Code Civ. Proc., 446, 2015.5) By Party Daniel Cooper CASE TITLE: Daniel Cooper, an individual; Petitioner/Appellant v. Elia WEINBACH, an individual; Defendant/Respondent. I, Daniel Cooper, in Pro Per, declare: I am the signatory to the civil case SC113064.
IN PRO PER

I am the Petitioner and Appellant in the above-titled matter. I have read the foregoing Reply Brief and know the contents thereof. The same is true of my own knowledge, except as to those matters, which are therein stated on information and belief, and, as to those matters, I believe it to be true. This verification was executed on June 3, 2013, at Los Angeles County, California. I declare under penalty of perjury that the foregoing is true and correct.

_______________________________ Daniel Cooper, In Pro Per 1836 10th Street #B Santa Monica, CA 90404 310-562-7668

13

E058417!
CERTIFICATE OF LENGTH I, Daniel Cooper, in Pro Per, certify pursuant to the California Rules of Court, that the word count for this document is 3,300 words or less, excluding the tables, this certificate, and any attachment permitted. This document was prepared in Microsoft Word and this is the word count generated by the program for this document. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed, on June 3, 2013, at Los Angeles County, California. ____________________________ Daniel Cooper, In Pro Per 1836 10th Street, #B Santa Monica, CA 90404 310-562-7668
IN PRO PER

14

AMENDED
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF ORANGE

E058417 / SC113064 PETITIONER/PLAINTIFF: Daniel Cooper, an Individual RESPONDENT/DEFENDANT: Elia Weinbach, an Individual I am over 18 years of age and not a party to this action. My residence address is Anthony Locatelli, 4084 Mt Acadia Blvd, San Diego, CA 92111
Daniel Cooper, In Propria Persona

On June 10, 2013, I served on the interested parties in this action (SEE ATTACHED SERVICE LIST with type and address) the following document(s) APPELLANTS REPLY TO RESPONDENTS BRIEF with Amended Proof of Service

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on June 10, 2013 at San Diego, California, ________________________________ Anthony Locatelli

PROOF OF SERVICE BY FIRST-CLASS MAIL --CIVIL

SERVICE LIST
E058417 / SC113064 PETITIONER/PLAINTIFF: Daniel Cooper, an Individual RESPONDENT/DEFENDANT: Elia Weinbach, an Individual e-Mail Service Co-Appellant: Dennis Ettlin 27222 Paseo Lomita San Juan Capistrano, CA 92675 dennis@ettlin.net
Daniel Cooper, In Propria Persona

e-Mail Service -- Defendant: Kevin M. McCormick Benton, Orr, Duval and Buckingham 39 North California Street, Post Office Box 1178 Ventura, California 93002 kmccormick@bentonorr.com Mail - Courtesy Copy Hon. Robert H. OBrien Superior Court of California County of Los Angeles Stanley Mosk Courthouse 111 N. Hill Street Los Angeles, CA 90012 e-Filing Supreme Court of California See Amended Proof of Service with Fourth Appellate Court for copy of email confirmation.

PROOF OF SERVICE BY FIRST-CLASS MAIL --CIVIL